Statutory guidance for organisations which work with and support children and young people who have special educational needs or disabilities

Fixed Period Exclusion

Fixed Period Exclusion from school means that a pupil is not allowed in school for a set number of days for disciplinary reasons.

Fixed period exclusion is one of the sanctions a school can give if a child does something that is against the school's behaviour policy (the school rules). Most fixed period exclusions are for short periods of 5 days or less but they can be for longer. An individual pupil may not be given more than 45 days fixed term exclusion in any one school year.

Understanding the decision to exclude

There are guidelines about what should be taken into account before deciding to exclude a child from school.

Who can exclude?

Only the headteacher has the power to exclude your child. Other members of staff such as heads of year cannot exclude, though they may provide information to inform the headteacher’s decision.

Reasons for exclusion

All exclusions must be for disciplinary reasons only. All schools must have a behaviour policy setting out what the school rules are and this must be published on the school website.

Standard of proof

The head’s decision to exclude must be taken on the ‘balance of probabilities’. That means that it is more likely than not that the pupil did what they are accused of. This is not the same as the ‘beyond reasonable doubt’ standard required in a criminal case.

When exclusion is not allowed

It is unlawful to exclude or extend an exclusion for a non-disciplinary reason. For example:

if your child has special educational needs and the school say it can’t meet those needs. It should look at putting more or different support in place instead.

if your child is not doing well in school or is not as able as other children. A child cannot be excluded because they are not likely to get good exam results.

because of something you have done as a parent. That might be something like making a complaint or not going to a meeting at school.

not allowing a child back into school after a fixed period exclusion unless they meet particular conditions. Once the exclusion is ended your child must be allowed to go back. For example the head teacher can’t extend the exclusion because your child won’t admit they are guilty.

Behaviour outside school

Pupils can be excluded for behaviour outside school, this may include behaviour on school trips, on the way to and from school and behaviour which may bring the school into disrepute. Cyber-bullying which takes place out of school may also lead to an exclusion.

Having a say

Where practical, a head teacher should allow a pupil to present their case before deciding whether to exclude. If this hasn’t happened, find out your child’s version of what happened and send this into school yourself.

Unofficial exclusions

Sometimes schools may ask parents to keep their child at home without excluding them. This is often portrayed as doing the parent and child a favour by not making it official. This is not lawful, even if you agree to it. If the head teacher does not want your child in school for disciplinary reasons they must go through the formal exclusions process.

Children should not be asked to stay at home because the school can't provide for their special educational needs. If this happens, remind the school that this amounts to an unlawful unofficial exclusion. You may also wish to tell the exclusions officer in your local authority that this is happening.

Children with SEN or disabilities

Sometimes children with special educational needs can show poor behaviour because they are feeling frustrated in their learning. They may also have emotional difficulties or a disability which affects the way they behave. Before excluding a child with SEN, the school should look first at what additional support is needed or whether a different school would be more suitable. If your child has an Education Health Care (EHC) Plan then the school should consider bringing forward the annual review or holding an emergency interim review.

Other factors affecting the exclusion

Before deciding to exclude head teachers should take account of factors that may have affected the child’s behaviour such as bullying, mental health issues, bereavement or unidentified SEN.

Alternatives to exclusion and early intervention

Where children are at risk of exclusion, schools should look at early intervention to address the underlying causes of the poor behaviour. If a child shows persistent disruptive behaviour, heads should consider a multi-agency assessment. This may pick up unidentified special educational needs but also wider family issues affecting the child.

Vulnerable groups

Some groups are overrepresented in exclusion statistics. These include children with SEN, children eligible for free school meals, children from particular racial groups and looked after children. Head teachers should look at providing extra support to these groups to try to reduce the risk of exclusion.

Looked after children

Schools should work together with foster carers, children’s homes and the local authority that looks after the child to try to avoid exclusion. This might include putting in additional support or looking at whether a different school would be more suitable. If you are a foster carer you have the same rights in education law as other parents if the child you look after is excluded.

What happens during an exclusion

This section explains what the school must tell you if your child is excluded and what your responsibilities are during the exclusion

Keeping your child at home

The first five days

Even though your child is not allowed in school, they still should still be receiving education. Schools should take reasonable steps to set and mark work for the first five days of any exclusion. The work should be accessible and achievable. If no work has been sent home, contact the school and ask for some.

During these five days you are responsible for your child’s whereabouts. You must make sure they are not in a public place without reasonable justification during school hours. You could be fined if you breach this duty. The fine is £60 and goes up to £120 pounds if you do not pay within 28 days. Failure to pay within 42 days could lead to prosecution.

Alternative education

Day six and beyond

If your child has been given a fixed period exclusion of more than 5 days or consecutive fixed period exclusions that total more than 5 days, the school has a duty to provide suitable full-time alternative education no later than day 6. That is most likely to take place at a pupil referral unit or other alternative provision. Schools do not have to provide alternative education for children who are below or above compulsory school age.

Going back to school

In this section you can find advice on helping your child reintegrate iback nto school once the exclusion is finished.

Having a meeting

It can be difficult going back to school after an exclusion. Your child may have missed work and you may be worried about the possibility of further exclusions.

Schools should have a strategy for reintegrating pupils after exclusion. In many cases there will be a reintegration meeting when your child goes back. At this meeting it’s important to look at how you, your child and the school can all work together to avoid problems in the future. You may wish to ask for extra support for your child. If you haven’t been offered a meeting, it may be sensible to ask for one.

Support for your child

Following a fixed period exclusion you may wish to ask for extra help for your child to address any difficulties in school.

Special Educational Needs

Sometimes poor behaviour can be an indication of special educational needs. For instance, if your child has difficulty learning and cannot follow what is going on in the classroom, this may lead to inattention or disruption. Emotional and communication difficulties can also be a special educational need in their own right if they are preventing a child from accessing the curriculum.

If you feel that the exclusion was a result of unmet SEN you may wish to ask for:

more or different support

assessment by an educational psychologist

an early or interim review if your child has an EHC plan

‘reasonable adjustments’ if your child is disabled

Make sure that the school’s Special Needs Co-ordinator (SENCO) is involved in any meetings.

Pastoral support

Many schools will put into place a Pastoral Support Programme (PSP) for children and young people at risk of exclusion. This should set manageable short-term goals for improving the child’s behaviour with support to help achieve them. You may wish to ask for the following interventions:

mentoring – a trusted person such as a learning mentor to meet your child regularly

counselling – many schools have a counsellor on site or links to outside organisations

behaviour support – this might be something like anger management course or advice from a specialist behaviour support teacher

Challenging the exclusion

This section explains what to do if you are not happy about your child's exclusion

Asking the headteacher to withdraw the exclusion

If your child has not yet been formally excluded or if the exclusion is still ongoing, you may want to ask the headteacher to consider withdrawing or shortening the exclusion.

This may be particularly relevant if you feel that the headteacher was not in full possession of the facts or if the decision was made hastily. However it's important to be aware that the head does not have to change their decision even if you think it is wrong or unfair. You can then put your case to the governing body

Making representations to the governors

What rights do you have?

What you can do depends on the length of the exclusion or exclusions your child has had.

It’s important to remember that the relevant number of days is the total number of days’ exclusion in any one term. Responsibility for reviewing exclusions lies with the Governors of the school. This may be delegated to a sub-committee which must have at least 3 members.

up to 5 days exclusion in a term

You have a right to make representations (put forward your views) to the governors. The governors must consider your representations, but there is no set time limit for this. They do not have to arrange a meeting with you, though many will agree if you request it. They must however still consider your written representations.

The governors do not have the power to reinstate your child and it is likely that the child will be back in school anyway. As the exclusion will have happened, it cannot be deleted from the school record. However if the governors agree with you that it was not justified, they may put a note on the school record.

between 5 1/2 and 15 days in a term

The governors must meet to consider the exclusion if the parent requests it. The meeting must take place within 50 school days. The governors can reinstate a pupil either immediately or on a specified date

more than 15 days in a term

The governors will automatically meet to consider the exclusion. This must be within 15 school days. The governors can reinstate a pupil either immediately or on a specified date.

Useful Documents

There are a number of documents that may be useful if you are challenging your child’s exclusion:

the school SEN policy (if your child has SEN which may be relevant to the exclusion)

your child’s school record – you need request this in writing.

incident reports and witness statements – the school should have compiled a report of the incident and may have taken witness statements from the pupils involved

If you are planning to challenge the exclusion, request these in writing from the school straight away.

Preparing your case

This section will help you put forward your views to the governors. It is sensible to do this in writing even if you will be meeting them in person. Keep copies of all letters and emails.

You will need to convince the governors that the decision to exclude your child was not lawful, reasonable or fair. In order to do this make sure you understand the rules around exclusions.

Procedures

Check that the school has followed the proper procedures in accordance with the guidance. Was it the head who excluded the child? Were you notified in writing without delay? Did the letter give reasons for the exclusion? Did your child have a say? Was alternative education provided?

Lawful?

What reasons are given for the exclusion? Are these genuine disciplinary reasons? Was the incident against the school's behaviour policy?

Evidence

If you think that your child did not do what they are accused of or you do not agree with the school’s version then you will need to consider the evidence very carefully.

Talk to your child about what happened. It is sensible to do this as soon as possible. Try to get them to focus on the facts of the incident. You may wish to ask some direct questions such as

tell me exactly where you were

who else was there?

did any other staff see what happened?

did anything lead up to it?

Your child’s school record, the incident report and any witness statements will be useful here. Do they reflect your child's view of events? Are there differences between the statements? Highlight any inaccuracies. Are there important people who were not asked for a statement? If so you could ask the school to get their views. Has your child been in trouble before? Is it likely that they would behave in this way?

Fair?

Look at the school's behaviour policy. Are they applying their behaviour policy consistently? If other children were involved in the incident, how were they treated? Were they given the same punishment?

Factors affecting your child

Was your child affected by anything going on at home or at school? Was this something you told the school about?

Support for your child

If your child has been having ongoing problems with behaviour, has the school put in support to try and address this? Have they considered a multidisciplinary assessment? Is there a PSP in place? Has any support in place been reviewed regularly?

Special educational needs

How do your child's special educational needs affect their behaviour? Has the school followed its SEN policy? Was your child receiving the support they should have been? Was the incident a result of lack of support?

Discrimination

Was the exclusion affected by something like race, gender, disability, sexual orientation?

If your child has a disability, was the behaviour they are being punished for a direct consequence of their disability? Were there reasonable adjustments the school could have made to avoid the incident? Give examples of what they could have done differently. More information is published in the Technical Guidance for Schools from the Equality and Human Rights Commission.

Proportionate

You may think the punishment is too severe for what your child did. Have a look at the school’s behaviour policy. Is there a scale of punishments related to the seriousness of the offence? What alternatives might have been available?

The governors' exclusion meeting

This section explains how the governors' exclusion meeting will be run. The procedures set out here only apply if the governors have a duty to meet. If your child has had a short exclusion (5 days or fewer in a term) and the governors decide to meet with you, that meeting can take whatever form the governors think appropriate.

Who will be there?

There must be at least three governors and none of them should have any involvement in the case that might lead them to favour one side above another. A clerk to take notes and advise on procedure is normal practice but is not a legal requirement.

The following people must be invited to the meeting:

Head teacher - to explain the school’s case for excluding your child

Parents – to make the case for your child. You must be allowed to bring a friend or representative to support you at the meeting

The local authority must be invited and may make representations. They may not always attend, particularly for shorter exclusions.

If the school is an Academy you may ask for a local authority representative to be invited to the meeting. They will not be invited if you do not ask for it and governors will need to agree if they can make representations or just observe the meeting.

Other people who may attend:

Witnesses – are there any witnesses who could help your case? You could ask for a character witness to be there to present your child in a positive light

Your child – should be supported to attend if they wish.

Exclusion Papers & Evidence

You should submit your written material before the meeting. You should also be sent copies of the school’s exclusion papers such as witness statements and any other evidence relied on before the meeting. If any new papers are brought up at the meeting, ask for a short break in order to read them

Natural justice - a fair hearing

The governors should not discuss the exclusion outside the meeting. That means that they shouldn’t have a private meeting with the head teacher about it without you there.

Think about what will help you and who can go to the meeting with you. There may be community organisations that can support you. If your child has SEN, contact your local Special Educational Needs and Disability Information Advice Support Service (SENDIASS) service. Their contact details will be on the local authority website.

If you have a disability, the governors must take steps to make sure you are not put at a disadvantage because of this. All parties should be supported to participate and have their views heard. Make sure you ask if you need any other support such as an interpreter.

Think about the best way for your child to be involved. Particularly for younger children, it may be upsetting or confusing for them to attend the whole meeting. In this case it may be better for them to come to part of the meeting to give their views or an apology and then leave.

What will happen at the hearing?

The order of the hearing is not set out in guidance. A typical order of proceedings might be:

the chair introduces everyone and explains what will happen

the head gives the school’s case for excluding the child

the parent puts their case

opportunities for all parties to ask questions

summing up by the head and the parents

The parents and the head will then leave, as the governors must make the decision on their own. A clerk may stay with them to help by referring to notes of the meeting.

The governors’ decision

When making their decision, the governors must:

consider the interests and circumstances of the excluded pupil

have regard to the interests of other pupils and people working at the school

They will look at the facts on balance of probabilities and consider whether the head’s decision was lawful, reasonable and procedurally fair. The possible outcomes vary according to the length of the exclusion. For exclusions of less than 5 school days the Governors can uphold the exclusion or note their findings on the child’s school record - they cannot reinstate. For exclusions over 5 school days they can uphold the exclusion or reinstate your child.

Minutes should be taken of the meeting as a record of the evidence that was taken into account.

After the meeting

The governors must let you know the outcome and the reasons for their decision in writing without delay. If your child has a disability which affected the exclusion and you feel that the governors did not take this into account, you may make a disability discrimination claim to the First Tier Tribunal SEND